|Advisory Opinion No. 93-5:||Application of Public Officers Law §74 to foresters who seek to perform services as private consultants in the forestry field with which they are associated.|
Pursuant to its authority under Executive Law §94(15), the State Ethics Commission ("Commission") hereby renders its opinion that Public Officers Law §74 precludes DEC foresters from performing services as forestry consultants because they have significant responsibilities for forests owned by potential clients and over the activities of forestry consultants with whom they would be competing. Such outside activity could (1) cause the public to suspect that they are using their State positions for personal gain in conflict with their State positions and in violation of their trust, (2) create a substantial conflict between the duties of foresters and their private interests, or (3) result in the use of official position to secure unwarranted privileges.
The New York State Department of Civil Service job description for DEC foresters reflects that foresters are responsible for a variety of professional forestry work directed toward a balanced use of publicly and privately owned forest lands. They are engaged in: forest management and protection programs, providing information and assistance to timber harvesters; watershed protection; the forestry-related aspects of pure waters and water resources programs; the return of lands (both public and private) to silviculture; and the development and operation of public recreational facilities.(1) The job description for foresters states:
The work ordinarily involves the conduct of studies, investigations and inspections and the preparation of reports concerning them. There is a strong element of public relations work in this series as incumbents are required regularly to meet and deal with the public.
DEC indicates that its foresters are often the first contact between the Department and the public. In a memorandum to a DEC regional supervisor, DEC's counsel described the forester's duties:
The forester attends fairs, makes speeches and meets with landowners. In this way, the foresters provide free services, which explain the opportunities and resources available for forest management.(2)
Foresters serve in DEC's Division of Lands and Forests which comprises five bureaus: Land Resources, Forest Resource Management, Preserve Protection and Management, Forest Protection and Fire Management and Real Property Services. Because of their interaction with private industry and landowners, of particular concern to this opinion are foresters who serve in the Land Resources and Forest Resource Management bureaus.(3)
_______The Bureau of Land Resources employs 15 foresters who are responsible for interacting with private sector businesses involved in processing forest resources (i.e., sawmill owners, paper industry). These foresters, among other things, encourage the timber industry to use sound logging techniques, provide forest resource planning education to the industry and implement the New York State Cooperating Timber Harvester Program. Through that program, DEC maintains and distributes a list of cooperating timber harvesters to interested landowners, provides cooperating timber harvesters with business management assistance and with advice on forest management and forest products marketing and, if requested, provides future notices of the sale of forest products on State lands. In return, the cooperating timber harvesters encourage landowners to contact DEC foresters for forest management advice, follow timber harvesting guidelines for New York State and harvest only those trees which have been designated for removal by a DEC forester, a Cooperating Consultant Forester, or the landowner.(4)
Forest Resource Management
The Bureau of Forest Resource Management employs 114 foresters who encourage private timber owners to apply sound forest management practices in their woodlands. Typically, a DEC forester accompanies a private landowner on a tour of his or her property and outlines forest management opportunities as they relate to that property. Such assistance may include developing written management recommendations, tree farm consultations and practical marketing assistance through the DEC forester's knowledge of sawmill owners, cooperating timber harvesters and other woodusers who buy timber in the area.(5)
Foresters in this bureau also administer the Cooperating Consultant Forester Program, established pursuant to Environmental Conservation Law ("ECL") §9-0713, which permits DEC's Commissioner to:
. . . assist cooperating owners in connection with the application of approved forest practice standards. The commissioner shall provide to cooperating forest and farm woodland owners technical services in connection with all phases of forest management including but not limited to, plantation establishment and care, the marking of timber, marketing assistance and silvicultural treatment of immature stands.
The Cooperative Consultant Forester Program is designed to encourage landowners to participate with private consultant foresters approved by DEC (called "cooperating consultant foresters") to manage their woodlots. As part of the program, DEC provides woodland owners with a directory of qualified cooperating consultant foresters and encourages landowners to secure the services of these consultants. In return, cooperating consultant foresters agree to adhere to New York State Forest Practice Act cutting standards and the standards contained in DEC's Timber Management Handbook. The cooperating consultant foresters provide, for a fee, advice and services which include determining what trees should be cut, where and how to plant trees, and frequently operate as a liaison (representing and being paid by the landowner) between the private landowner who wants to sell trees and the logging business hired to harvest the trees.(6) As with all forestry consultants, the cooperating consultant forester's fee is based on the amount of time required to perform the job, acreage of woodland involved, or a contract price based on a proportion of the revenues from the sale of stumpage or cordwood.(7)
On February 4, 1991, DEC's counsel issued a memorandum prohibiting all DEC foresters from performing any private forestry consultant services. This expanded the previous DEC prohibition against its foresters participating only as cooperating consultant foresters in the Cooperating Consultant Forester Program in any way.(8) In his memorandum, DEC's counsel indicated that one of the main responsibilities of the forestry consultant, whether participating in the Cooperating Consultant Forester Program or not, is "to prepare an approved management plan so that landowners can qualify for a forest land (tax) exemption." Such an exemption is established pursuant to Real Property Tax Law §480-a, which provides:
(2) . . . if the department [DEC] finds that such tract is an eligible tract it shall forward a certificate of approval to the owner thereof, together with a management plan for the eligible tract specified by the department. Such management plan shall contain requirements and standards for the management of the eligible tract which are deemed necessary by the department for the continuing production thereon of marketable forest crops, including but not necessarily limited to stocking, cutting and access requirements. . . .
Where the Department determines that either the Cooperating Consultant Forester or the landowner has failed to comply with program responsibilities, the Department may suspend or remove the forester from the list and the landowner may ultimately lose his or her tax exemption.(9)
DEC's counsel believes that it would cause a conflict for any DEC forester to serve simultaneously as a forestry consultant, even though the functions of each position are complementary, because: (a) State foresters could use information gained during the course of official duties to further personal interests in their private consulting work; (b) State foresters would be in a position to recommend their own outside services to the public they serve in an official capacity; (c) in representing a private landowner in a sale to a timber company, State foresters may be working with a company that does business with the Department.
On September 9, 1992, DEC issued a conflict of interest policy applicable to all agency employees. According to that policy, employees who "have reason to believe that an apparent or potential conflict exists . . . must obtain written approval . . . " for such employment.
As DEC employees, foresters are governed by §74. The rule with respect to conflicts of interest is contained in Public Officers Law §74(2):
No officer or employee of a state agency . . . should have any interest, business or transaction or professional activity or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his duties in the public interest.
Following the rule with respect to conflicts of interest, Public Officers Law §74(3) provides standards of conduct which address not only actual but apparent conflicts of interest. For present purposes, the following paragraphs are relevant:
Turning to the application of Public Officers Law §74, the Commission has held that it prohibits a State officer or employee from engaging in an outside activity over which the individual has regulatory or enforcement responsibility. For example, in Advisory Opinion No. 92-3, the Commission found that §74 prohibited Environmental Conservation Officers ("ECOs") employed by DEC from engaging in certain for-profit business activities over which they have official enforcement responsibility. The Commission stated that:
[s]uch involvement would constitute an interest in substantial conflict with the proper discharge of the ECO's duties because he or she would be enforcing the laws pertaining to his or her own business, businesses of colleagues as well as that of his or her competitors. The public would reasonably question whether an ECO so involved was performing his or her duties in the public's interest or in his or her own interest.
In Advisory Opinion No. 92-12, the Commission found that §74 prohibited Pesticide Control Specialists ("PCSs") employed by DEC from performing private pesticide consulting services when their official State responsibilities required their interaction with persons in need of such services:
[T]he distinction between the sale of consulting and the sale of applications is immaterial when the [State employee] and the private [ ] business have the same market (persons in need of [specific assistance]) and those in the [specific business] are, to a significant degree, regulated by the [State employee.] The fact that the [State employee] could inspect the specific locations and [ ] before and after a treatment which he recommended leads to an inescapable conflict of interest.
In each of the above cited opinions, the Commission prohibited the outside activity because the State employees had some direct or indirect regulatory or enforcement responsibility over the proposed activity.
Here, DEC foresters seek to perform services as forestry consultants, persons with whom they and their agency have a strong association through the Consulting Timber Harvesters Program, the Cooperating Consultant Forester Program and the Department's expansive authority to administer to State forest land. It is precisely that close association that gives rise to serious concerns about their serving in both capacities at thesame time. An important aspect of the duties performed by DEC foresters is liaison between State government and those who own forested lands. For example, DEC foresters play an important role in establishing a landowner's eligibility for the §480-a tax incentive program by helping develop management plans for the land. To encourage the planting of trees and other timber improvement activities,(10) foresters must convey to private owners of property a sense of trust that the forester is acting in the State's best interest and not their own.
By serving in two capacities, DEC foresters/forestry consultants may well cause confusion among landowners who rely upon DEC foresters for objective assistance in properly maintaining their property. For instance, because the fees of forestry consultants can be determined in part on the type of work the consultant advises, there might be the temptation to advise actions inconsistent with DEC policies. The loyalty of the DEC foresters as private consultants would be to the fee payor and not DEC. There is the inherent potential of irreconcilable conflicts between the public and private interests both of which would be involved here. Even were no financial considerations present, the proposed dual service would be untenable. The Commission's view is that Public Officers Law §74(2) precludes DEC foresters from serving as forestry consultants, as that service would be in substantial conflict with the proper discharge of DEC foresters' duties in the public interest.
Similarly, Public Officers Law §74(3)(g) directs State employees to abstain from making personal investments in enterprises which they have reason to believe may be directly involved in decisions to be made by them or which will otherwise create substantial conflict between their duty in the public interest and their private interests. In Advisory Opinion No. 90-5, the Commission found that a State employee may not engage in outside employment as a photographer and copy writer if his outside assignments were to involve groups with which he had an association by virtue of his State job responsibilities. The Commission reasoned:
. . . one cannot work for the State during the day and develop relationships with clients, who are subject to regulation or oversight by the Department, for private profit at night.
This is a particular hazard in the case at hand; DEC foresters could utilize their State positions and enforcement powers to advertise their outside businesses claiming that they are in a better position than competitors to perform DEC approved work.
Furthermore, DEC foresters are in a position to obtain client information through their State employment before others in the forestry consulting business have the same opportunity. The DEC foresters' responsibilities require that they interact with private woodland owners, assessing their needs and, when appropriate, recommending the use of forestry consultants and persons participating in the Cooperating Timber Harvester Program. Irrespective of whether DEC foresters wish to participate in either program, their status as forestry consultants and their DEC responsibility to inspect the work of potential competitors would give them an ability to sell their private expertise and allow personal business interests to interfere with professional judgments. Clearly, the public and the persons subject to DEC jurisdiction could be intimidated or influenced to use these foresters to "buy" their approval and advantage with DEC. Therefore, the Commission determines in the present case that it would be a violation of Public Officers Law §74(3)(g) for foresters to serve as forestry consultants and to inspect the work of competitors as DEC foresters.
Public Officers Law §74(3)(h) prohibits State officers and employees from pursuing a course of conduct that raises suspicion among the public that they are engaged in activities that are in violation of the public trust. Those in the forestry consulting business may well argue that DEC foresters who also consult use their official position to obtain consulting business over competitors. Further, the DEC foresters in question may more zealously enforce DEC's forest-related regulations against competitors than against their own clients. Because the potential for all of the aforementioned problems exists, the Commission concludes that there would be a reasonable basis for suspicion among the public that DEC foresters would be engaged in activities that are in violation of their public trust if they were to engage in the private forestry consulting business.
The Ethics Law must be carefully applied in instances where a State officer or employee is pursuing an outside or private interest. In situations where an employee of a State agency is intending to or does engage in private business with entities the employee serves for the State agency that regulates them, a finding of a conflict of interest is inevitable. The integrity of government and its employees is no small matter in today's environment. Public employees cannot engage in outside business with the very people whom they are to serve as public employees. The public would rightly question their loyalty and their service to the public interest.
This opinion, until and unless amended or revoked, is binding on the Commission in any subsequent proceeding concerning the persons who requested it and who acted in good faith, unless material facts were omitted or misstated by the person in the request for opinion or related supporting documentation.
Joseph M. Bress, Chair
Barbara A. Black
Angelo A. Costanza
Robert E. Eggenschiller
Donald A. Odell, Members
Dated: February 8, 1993
1. NYS Department of Civil Service, Forestry Series, September, 1972. Although the Commission recognizes that a forester's level of responsibilities may differ within the forestry series, this opinion shall pertain to all forestry positions within the civil service title series "forester," including forester (SG-14), senior forester (SG-18), associate forester (SG-21), principal forester (SG-25), chief forester (SG-28), assistant director of lands and forests (SG-32) and director of lands and forests (SG-35).
2. Memorandum from DEC Counsel [ ] to [ ] DEC Regional Supervisor, 2/4/91.
3. The Preserve Protection and Management Bureau, employing 17 foresters, is primarily concerned with State forest preserves and has limited interaction with private landowners. The Forest Protection and Fire Management Bureau does not employ foresters and the Real Property Services Bureau, which employs 11 foresters, is primarily concerned with land surveying. The conclusions in this opinion apply to all DEC foresters.
4. "New York State Cooperating Timber Harvester Program," DEC brochure, (LF-P233, 233a, (4/86)-19a). The "Cooperating Consultant Forester" program is described below.
5. "Help for Your Forest Land," DEC brochure (LF P-46(9/92)-19d).
6. "Cooperating Consultant Foresters," DEC Policies and Procedures Manual, Title 8100, Chapter 8170. This manual specifically excludes employees of DEC from eligibility for Cooperating Consultant Forester status.
7. "The New York State Cooperating Consultant Forester Program," DEC brochure, (LF P-148(1/92)-18a).
8. "Cooperating Consultant Foresters," DEC Policies and Procedures Manual, Title 8100, Chapter 8170.05-1 (effective 7/13/83).
9. These results may occur after a negotiating process. The Regional Forester investigates the non-compliance and calls a meeting of the principals and tries to resolve the issue. If no resolution is reached, the Director of Land and Forests, in consultation with a review committee, will decide what action is to be taken. [DEC Policies and Procedures Manual on Cooperating Consultant Foresters Part 8170.09. See also 6 NYCRR Part 199.10.]
10. In furtherance of Real Property Tax Law §480.